US Department of State
Hong Kong Country Report on Human Rights Practices for 2005
Released by the Bureau of Democracy, Human Rights, and Labor, March 8, 2006.
(This original report was appended to the China Country Report on Human Rights Practices for 2005.)
Hong Kong, with a population of approximately 6.9 million, is a Special Administrative Region (SAR) of the People's Republic of China (PRC). The 1984 Sino-British Joint Declaration on the Question of Hong Kong and the SAR's constitution, the Basic Law of the Hong Kong Special Administrative Region of the Peoples Republic of China (hereafter referred to as the basic law), specify that Hong Kong will enjoy a high degree of autonomy except in matters of defense and foreign affairs. The basic law provides for the protection of fundamental rights and calls for further democratization and progress toward universal suffrage after 2007.
The chief executive is chosen by an election committee composed of 800 directly elected, indirectly elected, or appointed individuals. The chief executive appoints and supervises a cabinet of principal officers. Following the resignation of former Chief Executive Tung Chee-hwa in March, the National People's Congress (NPC) standing committee ruled that the acting chief executive should serve the remaining two years of Tung's term. The basic law significantly circumscribes the power of the Legislative Council (Legco), which is comprised of 60 members, only half of whom are elected through popular vote. Legco members were elected in 2004 to four-year terms. Although the elections were generally considered free and fair, there were allegations in the months leading up to the election with respect to intimidation of voters and political commentators. The civilian authorities generally maintained effective control of the security forces.
The government generally respected the human rights of its citizens; however, the following human rights problems were reported:
- limitations on residents' ability to change their government and limitations on the power of the legislature to affect government policies
- continuing concerns about self-censorship
- violence and discrimination against women
- restrictions on workers' rights to organize and bargain collectively
RESPECT FOR HUMAN RIGHTS
There were no reports that the government or its agents committed arbitrary or unlawful deprivations of life.
There were no reports of politically motivated disappearances.
The law forbids torture and other abuse by the police, and the government generally observed the prohibition in practice. However, there were allegations of police assaults during the year. Disciplinary action can range from warnings to dismissal. Criminal proceedings may be undertaken independently of the disciplinary process. The Complaints Against Police Office (CAPO) investigates allegations of excessive use of force and the Independent Police Complaints Council (IPCC), a body composed of public members appointed by the chief executive, monitors and reviews their work.
During the first half of the year, CAPO received 202 allegations of police officer assaults against persons in custody and 117 allegations of assault against persons not in custody, out of a total of 19,985 arrests. Of the 202 allegations of assault by police officers against persons in custody, 118 case investigations were completed and endorsed by the IPCC, and none were substantiated: 62 were withdrawn, 43 were deemed "not pursuable," 10 were judged to be false, 1 was judged "no fault," and 2 were judged "unsubstantiated." The remaining 84 cases were pending as of June 30. Of the 117 allegations of assault against persons not in custody, 86 case investigations were completed and endorsed by the IPCC, and none were substantiated: 47 were withdrawn, 33 were deemed "not pursuable," 4 were judged to be false, and 2 were judged "unsubstantiated." The remaining 31 cases were pending as of June 30.
Prison conditions generally met international standards. For the first 6 months of the year, the average prison occupancy rate for the 24 prisons was 108 percent. Overcrowding was most serious in maximum security prisons, which operated at an average occupancy rate of 131 percent. The government continued to address the problem of prison overcrowding by remodeling existing buildings to provide space for additional prisoners and redistributing the prison population. In addition the Immigration Department opened a new detention center in Tuen Mun during the year, which held 400 additional persons and eliminated the need to put immigration offenders in prison or other correctional facilities.
The government permitted prison visits by human rights observers, although there were no requests for visits during the year.
Common law, legal precedent, and the basic law provide substantial and effective legal protection against arbitrary arrest or detention, and the government observed these provisions in practice.
The police force is led by a uniformed police commissioner who reports to the secretary for security--a member of the chief executive's cabinet. The force had approximately 28,700 officers and was divided into five departments with both headquarters and regional formations. Corruption was not a significant problem within the force. Police officers are subject to disciplinary review by CAPO and IPCC in cases of alleged misconduct (see section 1.c.).
Suspects must be charged within 48 hours or released, and the government respected this right in practice. The law provides accused persons with the right to a prompt judicial determination. During the year the average length of pre conviction incarceration was 55 days. There were no reports of political detainees.
The law provides for an independent judiciary, and the government generally respected this provision in practice. The judiciary, underpinned by the basic law's provision that the common law tradition be maintained, provided citizens with a fair and efficient judicial process. Under the basic law, the courts may interpret those provisions of the basic law that address matters within the limits of the SAR's autonomy. The courts also interpret provisions of the basic law that touch on PRC central government responsibilities or on the relationship between the central authorities and the SAR. However, before making final judgments on these matters, which are not subject to appeal, the courts must seek an interpretation of the relevant provisions from the standing committee of the NPC. The basic law requires the courts to follow the standing committee's interpretation of basic law provisions, although judgments previously rendered are not affected. As the final interpreter of the basic law, the standing committee of the NPC also has the power to self-initiate interpretations of the basic law, as it did in April 2004 when it ruled out universal suffrage in Hong Kong's 2007 and 2008 elections (see section 3). The NPC's mechanism for interpretation is its Committee for the Basic Law, composed of six mainland and six Hong Kong members. The chief executive, the president of the Legco, and the chief justice nominate the Hong Kong members. Human rights and lawyers' organizations have expressed concern that this process, which circumvents the Court of Final Appeal's power of final adjudication, could be used to limit the independence of the judiciary or could degrade the courts' authority. There were accusations during the year that the government effectively undermined the authority of the courts by requesting an interpretation of the basic law from the NPC standing committee on the question of Chief Executive Tung Chee-hwa's successor's term of office. In response to the request, the NPC standing committee ruled in April that Tung's successor should only serve out the remaining two years of Tung's term rather than a full five-year term. Critics argued that the request, and the resulting NPC interpretation, sought to circumvent the judicial process. The government argued that the need to resolve the issue quickly left insufficient time for a lengthy judicial review.
The Court of Final Appeal is the SAR's supreme judicial body. An independent commission nominates judges. The chief executive is required to appoint those nominated, subject to endorsement by the legislature. Nomination procedures ensure that commission members nominated by the private bar have a virtual veto on the nominations. The basic law provides that, with the exception of both the chief justice and the chief judge of the high court, who are prohibited from residing outside Hong Kong, foreigners may serve on the courts. During the year approximately 22 percent of judges and judicial officers were expatriates. Judges have security of tenure until retirement.
Under the Court of Final Appeal is the high court, composed of the court of appeal and the court of first instance. Lower judicial bodies include the district court, which has limited jurisdiction in civil and criminal matters; the magistrates' courts, which exercise jurisdiction over a wide range of criminal offenses; the coroner's court; the juvenile court; the lands tribunal; the labor tribunal; the small claims tribunal; and the obscene articles tribunal
The law provides for the right to a fair public trial, and an independent judiciary generally enforced this right in practice. Trials are by jury except at the magistrate court level. The judiciary provides citizens with a fair and efficient judicial process. An attorney is provided at the public's expense if defendants cannot afford counsel. Defendants can confront and question witnesses testifying against them and present witnesses to testify on their behalf. Defendants and their attorneys have access to government-held evidence relevant to their cases. Defendants have the right of appeal.
Defendants generally enjoy a presumption of innocence. However, under prosecution rules, there is a presumption of guilt in official corruption cases. Under the Prevention of Bribery Ordinance, a current or former government official who maintains a standard of living above that commensurate with his official income, or controls monies or property disproportionate to his official income is, unless he can satisfactorily explain the discrepancy, guilty of an offense. The courts have upheld this ordinance in practice.
According to the basic law, English may be used as an official language by the executive, legislative, and judicial branches. For historical reasons and because of the courts' reliance on common law precedents, almost all civil cases and most criminal cases were heard in English. In recent years the government has developed a bilingual legal system. It has increased the number of officers in the legal aid department proficient in spoken Cantonese and written Chinese and extended the use of bilingual prosecution documents and indictments. All laws are bilingual, with English and Chinese texts being equally authentic. All courts and tribunals may operate in either Cantonese or English. Judges, witnesses, the parties themselves, and legal representatives may each decide which language to use at any point in the proceedings.
There were no reports of political prisoners.
The law prohibits arbitrary interference with privacy, family, home, and correspondence, and the government generally respected these prohibitions in practice.
Interception of communications is conducted under the Telecommunications Ordinance and the Post Office Ordinance. Wiretaps require authorization from the chief executive for interception operations, but a court issued warrant is not required. The government did not reveal the number of wiretaps and mail interceptions the chief executive authorized.
The Independent Commission against Corruption (ICAC) was criticized during the year for abusing its powers in using covert surveillance without legal authorization. In April a district court judge excluded tape-recorded evidence introduced by the ICAC during a corruption trial, saying there were no legal procedures governing the use of concealed microphones and cameras. The court said that under the basic law, the freedom of private communication could only be impinged in accordance with legal procedures. In July another district court judge threw out a corruption case, ruling that the ICAC had knowingly recorded conversations between a client and his lawyers in violation of ICAC procedures. In August, responding to these cases and to mounting public criticism of ICAC, the chief executive issued an executive order regulating the use of covert surveillance by law enforcement authorities. The order stipulated that law enforcement officials must get the approval of an "authorizing agent" before carrying out such surveillance. Some legislators criticized the order for making police officers above the rank of senior superintendent authorizing agents. They argued that only the courts should have such power. Legislators also criticized the order as a violation of the basic law because it bypassed the legislative process. One legislator filed suit to overturn the order as well as the existing wiretap law; the court of first instance is expected to hear the case in November. The Hong Kong Bar Association said the order was "constitutionally dubious." The government countered that the order was merely a temporary measure to regulate the use of covert surveillance until comprehensive legislation could be enacted.
The Office of the Privacy Commissioner for Personal Data (PCO), established under the Personal Data (Privacy) Ordinance (PDPO), works to prevent the misuse, disclosure, or matching of personal data without the consent of the subject individual or the commissioner. Some government departments are exempted to combat social welfare abuse and tax evasion. Violations of the PDPO can be either criminal or civil offenses. Between June and June 2004 the PCO investigated 1,172 complaints of suspected breaches of the ordinance and completed action on 984. The PCO found violations of the PDPO in 24 of these cases, with none resulting in prosecution. The remaining cases were resolved, rejected, or withdrawn after preliminary inquiries.
The PDPO is not applicable to PRC government organs in Hong Kong. At year-end the government was still considering whether it should be made applicable to PRC bodies. Under certain exemptions for purposes related to safeguarding the security, defense, or international relations of Hong Kong, and for the prevention, detection, or prosecution of a crime, Hong Kong authorities may be allowed to transfer personal data to a PRC body.
The law provides for freedom of speech and of the press, and the government generally respected these rights in practice. Accusations of media self-censorship continued during the year. Most media outlets are owned by businesses with interests on the mainland, making them vulnerable to self-censorship. The Hong Kong Journalist Association's (HKJA) 2005 annual report noted that there "is a continued perception that some sections of the media are engaged in self-censorship." During the year the HKJA cited a May poll by the University of Hong Kong showing that respondents were evenly split as to whether the media practiced self-censorship.
In November two employees of the local daily newspaper Ming Pao were slightly injured by a small package bomb that was addressed to the paper's editor. An accompanying letter denounced the paper's executives for publishing an unspecified article. As of year-end, the perpetrator's identity and exact motivation remained a mystery.
In March, the private printing company that Falun Gong used to publish the Hong Kong edition of its Epoch Times newspaper refused to renew the group's contract, which expired May 13. Falun Gong alleged the contract was canceled because the company feared business reprisals from its mainland clients, some of who had connections to the PRC government. A Falun Gong spokesperson said the printing company considered the content of the paper "sensitive" and was afraid that continued printing would negatively affect its business. Falun Gong found another printer in late May, but said the company refused to sign a written contract--verbal orders are placed each day. They also said that at least 10 other printing companies had refused to print the paper.
In July a radio talk show host resigned his position, saying that he was denied a primetime slot because of his outspoken views. The same talk show host had previously resigned in 2004 for unexplained reasons, but later returned to his job and was given a Saturday evening time slot. This followed the resignation in 2004 of two other popular radio talk show hosts, who were known for their anti-government and anti-mainland rhetoric, due to alleged intimidation. The police investigated the allegations but determined there was not enough evidence to file charges.
Also in 2004 several journalist groups accused the ICAC of violating press freedom when it raided newspaper offices to seize evidence related to a corruption case. Although a legal challenge resulted in ICAC's search warrant being overturned, the courts ruled that ICAC had acted lawfully.
The editorial independence of the government-owned Radio Television Hong Kong (RTHK) was questioned during the year. The station discontinued live broadcasts of horse racing and a music award show following a suggestion by then-candidate for Chief Executive Donald Tsang in June that such programs were already being broadcast by commercial radio stations.
International media organizations operated freely. Foreign reporters needed no special visas or government-issued press cards for Hong Kong.
There were no restrictions on the use of the Internet.
The basic law provides for academic freedom, and the government generally respected that freedom in practice.
The law provides for freedom of assembly and the government generally respected this right in practice. The government routinely issued the required permits for public meetings and demonstrations.
Under the Public Order Ordinance, demonstration organizers must notify the police of their intention to demonstrate one week in advance. The police accept shorter notice if groups can satisfy the commissioner of police that earlier notice could not have been given for a march involving more than 30 persons and for an assembly of more than 50 persons. The police must explicitly object within 48 hours and, if there is no reply, it is assumed there is no objection. The ordinance also empowers police to object to demonstrations on national security grounds, although that portion of the law has never been invoked. If the police object, demonstration organizers may appeal to a statutory appeals board comprising members from different sectors of society. Both the board's proceedings and the police's exercise of power are subject to judicial review.
The Public Order Ordinance has been criticized by civil rights activists for giving the police too much power to restrict marches and protests. In July the Court of Final Appeal dismissed a challenge of the Public Order Ordinance by a legislator and two others who were arrested in 2002 for staging a protest without notifying the police. In upholding the convictions, the court ruled that the prior notification system was constitutional.
In practice the police rarely reject requests for public marches or protests, and rejected none during the year. There were 834 public meetings and processions in the first half of the year, roughly half of which required notification. Many of these demonstrations concerned Hong Kong related issues, but some also involved issues sensitive to the central authorities. For example on June 4 approximately 30 thousand persons attended the annual candlelight vigil to commemorate the anniversary of the 1989 massacre in Beijing's Tiananmen Square. On July 1, 15 thousand to 50 thousand persons marched through central Hong Kong in support of greater democracy, worker's rights, gay rights, and other social causes. On December 4, tens of thousands of persons marched in support of universal suffrage. Unlike demonstrations in the past, this protest seemed focused on demands for political reform, pressing for a timetable on the introduction of fully democratic elections for the post of chief executive and Legco. These events were legally sanctioned and peaceful, although some protesters scuffled with police during the December 4 march. The protestors alleged that the police tried to contain the rally by closing too few lanes of traffic. During the World Trade Organization (WTO) ministerial meeting in December, one thousand protesters, mostly from outside Hong Kong, clashed with police. The police responded with tear gas, pepper spray, and water cannons. While some groups alleged police brutality, most observers said the police responded appropriately.
Falun Gong practitioners regularly conducted public protests against the crackdown on fellow practitioners in the PRC. In May, the Court of Final Appeal overturned the convictions of eight Falun Gong practitioners who had been charged with obstructing and assaulting police officers during a sit-in protest in 2002. The ruling was viewed as an important affirmation of Hong Kong's fundamental freedom of assembly, demonstration, and expression under the basic law.
The basic law provides for freedom of association, and the government generally respected this right in practice.
The basic law provides for freedom of religion, the Bill of Rights Ordinance prohibits religious discrimination, and the government generally respected these provisions in practice.
While Falun Gong practitioners freely and openly practiced their beliefs, they were routinely subjected to more subtle forms of discrimination. In September the Falun Gong's newspaper Epoch Times said an international hotel chain canceled its conference room booking due to a water leak. The newspaper had booked the room for a forum on the future of China. A Falun Gong spokesperson said that once it became widely known that the Falun Gong had sponsored the conference, a replacement facility could not be found. The group later held the forum in a public park. This is the second report in three years that an international hotel chain canceled a Falun Gong conference room booking.
Unlike previous years Falun Gong members were not denied entry into Hong Kong (see section 2.d.). Hong Kong's small Jewish community has excellent relations with the rest of society and there were no reports of anti-Semitic acts during the year.
For a more detailed discussion, see the 2005 International Religious Freedom Report.
The law provides residents freedom of movement, freedom of emigration, and freedom to enter and leave the territory, and the government generally respected these rights in practice, with some prominent exceptions. Most residents easily obtained travel documents from the SAR government. There were limits on travel to the mainland imposed by the PRC government.
The government does not recognize the Taiwan passport as valid for visa endorsement purposes.
The law does not provide for, and the government did not use, forced exile.
The government continued to deny entry to persons it considered politically controversial. In January Taipei Mayor Ma Ying-jeou was unexpectedly denied a visa to attend a University of Hong Kong seminar on culture and city management. The government refused to give a reason for the denial. Most observers linked it to Ma's comments that the PRC's enactment of an antisecession law was "unnecessary and unwise." Ma had previously visited Hong Kong in 1998 and 2001 and was received by the chief executive.
In December 2004 a New Zealand citizen and Falun Gong practitioner was denied entry to Hong Kong for unspecified reasons. The person was 1 of 16 Falun Gong members whose conviction for obstruction during a 2002 sit-in was overturned in November 2004.
Unlike in previous years, no Falun Gong members were denied entry. In 2004 the government barred 41 Falun Gong practitioners from entering the SAR for "security reasons," although approximately 350 practitioners were granted entry. Most of the practitioners were attempting to attend Falun Gong's annual conference, which attracted approximately seven hundred persons. Four of those denied entry filed a judicial review, which the Hong Kong branch of Falun Gong joined as a fifth applicant. As of year-end, the Court of Final Appeal had not yet issued a ruling in the case.
Also in 2004 the government denied a request to allow two 1989 Tiananmen Square student leaders to enter the SAR to participate in a conference focused on the Tiananmen Square massacre. Earlier in the year, other Tiananmen Square student leaders had been allowed to enter to engage in uncontroversial activities.
In the months leading up to the Sixth WTO Ministerial Conference in December, the government said it would not allow violent protesters to enter Hong Kong, although it denied having a blacklist. Apart from one French activist and three Filipino activists who were detained at the airport and eventually allowed to enter, there were no reports that immigration officials denied entry to demonstrators. To the contrary, media reports criticized the government for allowing entry to known activists.
PRC authorities do not permit some Hong Kong human rights activists and prodemocracy legislators to visit the mainland; however, this policy has been relaxed over the past two years. In April the PRC invited a group of moderate prodemocracy legislators, including two members of the Democratic Party who had previously been banned from traveling to the mainland, to Shenzhen to discuss with mainland officials the appropriate length of term for Tung Chee-hwa's replacement. In September the chief executive escorted 59 of 60 members of Legco, including some democrats who had been barred from the mainland since the 1989 Tiananmen Square crackdown, to Guangdong for a two-day trip to meet with provincial government and Chinese Communist Party (CCP) officials. In addition a handful of more moderate prodemocracy activists and legislators had their home return permits returned to them during the year.
The 1951 UN Convention relating to the Status of Refugees and its 1967 protocol do not extend to Hong Kong, and the SAR eliminated its temporary protection policy. On a case-by-case basis, the director of immigration has discretion to grant refugee status or asylum in cases of exceptional humanitarian or compassionate need, but the Immigration Ordinance does not provide foreigners any right to have asylum claims recognized. The government practice is to refer refugee and asylum claimants to a lawyer or to the Office of the UN High Commissioner for Refugees (UNHCR). Those granted refugee status, as well as those awaiting UNHCR assessment of their status, receive a UNHCR subsistence allowance but are not allowed to seek employment or enroll their children in local schools. The UNHCR worked with potential host country representatives to resettle those few persons designated as refugees. Government policy is to repatriate all illegal immigrants, including those who arrive from the mainland, as promptly as possible. During the first half of the year, 1,683 illegal PRC immigrants were repatriated to the mainland.
The right of residents to peacefully change their government is limited by the basic law, which provides for the selection of the chief executive by an 800-person election committee (composed of individuals who are directly elected, indirectly elected, or appointed). The basic law provides for the direct election of only 30 of the 60 Legco members, and the inclusion of appointed members to the elected district councils. The approval of the chief executive, two-thirds of the legislature, and two thirds of Hong Kong's NPC delegates is required to place an amendment of the basic law on the agenda of the NPC which, under the basic law, has the sole power to amend the basic law.
The basic law states that "the ultimate aim is the selection of the chief executive by universal suffrage upon nomination by a broadly representative nominating committee in accordance with democratic procedures." Similarly, the basic law states that the "ultimate aim is the election of all the members of Legco by universal suffrage." However, in 2004 the NPC standing committee rejected universal suffrage in Hong Kong in the 2007 and 2008 elections.
The government is authorized to exercise a high degree of autonomy and to enjoy executive, legislative, and independent judicial power. It contains an executive branch staffed by a professional and independent civil service, and a two-tiered legislative branch consisting of the Legco and 18 district councils.
In March Chief Executive Tung Chee-hwa unexpectedly resigned citing health concerns. Tung's resignation sparked a debate over the appropriate length of term for his replacement under the basic law. In 2004 the Hong Kong government took the explicit position that the basic law stating that "the term of the chief executive of the Hong Kong SAR shall be five years," applied without exception to any chief executive. The government abruptly changed that position following Tung's resignation, holding that the legislative intent of the basic law was that a chief executive returned through a by-election should only serve out the remaining term of the outgoing chief executive. In explaining the change, Secretary for Justice Elsie Leung said that she had been persuaded by arguments put forth by mainland legal experts based on unpublished records from the committee that drafted the basic law. This decision was criticized by the Hong Kong Bar Association, the Legal Society, and prominent legal scholars in Hong Kong who argued that the basic law specifies only a five year term for a chief executive. After legislators raised the prospect of filing for judicial review by the Hong Kong courts, the government requested an interpretation by the NPC standing committee to clarify the issue. The Hong Kong government argued that there was no time for a lengthy judicial review given the constitutional requirement to elect a new chief executive within six months, and that clarity was required to avoid a constitutional crisis. In April the standing committee of the NPC issued an interpretation of the basic law stating that Tung's replacement should only serve the remaining two years of Tung's term. The interpretation, which was regarded by many as inconsistent with the basic law, raised questions about the central government's commitment to the rule of law in Hong Kong and respect for Hong Kong's high degree of autonomy.
In June after a 10-day campaign, former Chief Secretary Donald Tsang secured 710 of the 800 election committee nominating votes. This was enough to ensure that his two declared challengers, Democratic Party Chairman Lee Wing-tat and Independent legislator Chim Pui-cheng, could not obtain the 100 nominations required to contest the election. Tsang was sworn-in on June 24 in Beijing.
In April 2004 the NPC standing committee issued a self-initiated interpretation of the basic law, cutting short local debate and rejecting universal suffrage for Hong Kong in the 2007 and 2008 elections. The NPC also determined that the current 50-50 ratio for directly elected geographic seats and indirectly elected functional constituency seats in Legco must remain indefinitely in place. In addition the NPC narrowed the circumstances in which Legco members would be permitted to initiate legislation. The NPC decision left room for amendments to the election processes, albeit strictly within the limits dictated by the NPC standing committee. In October a task force on constitutional development issued a report outlining the government's plan for constitutional changes in the methods for selecting the chief executive and the Legco in 2007 and 2008. The plan called for an increase in the size of the chief executive election committee and the addition of five seats each to both the geographic and functional constituencies. In December the government failed to garner the two-thirds support in Legco necessary to pass the reform package. All "no" votes came from prodemocracy members, who decried the legislation's failure to introduce a timeline for the introduction of universal suffrage.
Legco members were elected in 2004 to four-year terms, and despite some minor problems, including an insufficient supply of ballot boxes and intimidation of voters and political commentators, the elections were considered free and fair. Prodemocracy candidates won 18 of the 30 directly elected geographic seats and 25 seats overall. There were 199,539 persons eligible to vote in the functional constituencies.
The basic law substantially limits the ability of the legislature to influence policy by requiring separate majorities among members elected from geographical and functional constituencies to pass a bill introduced by an individual member. Another basic law provision prohibits Legco from putting forward bills that affect public expenditure, political structure, or government operations. Bills that affect government policy cannot be introduced without the chief executive's written consent. The government has adopted a very broad definition of "government policy" in order to block private member bills, and the president of Legco has upheld the government's position.
District councils are responsible for advising the government on matters affecting: (1) the well being of district residents; (2) the provision and use of public facilities; and (3) the use of public funds allocated for local public works and community activities. The District Council Ordinance gives the chief executive authority to appoint 102 out of 529 of the district councilors, and he exercises this power in practice.
Hong Kong sends 36 delegates to the PRC's National People's Congress. In 2002 Hong Kong's NPC delegates were elected to a 5-year term by an NPC-appointed committee of 955 residents. Politicians and human rights activists criticized the election process as undemocratic and lacking transparency. In 2004 two local NPC delegates won directly elected seats in the Legco. One NPC delegate lost his bid for a directly elected Legco seat.
Women held 11 of the 60 Legco seats and made up between 17 and 23 percent of membership in the major political parties. The president of the Legco was a woman, as were the heads of several government departments. More than one-third of civil servants were women, and 2 of the 15 most senior government officials were women.
There were no ethnic minorities in the Legco, but there were a number of ethnic minorities in senior civil service positions.
The government vigorously and with apparent success combated official corruption through the Prevention of Bribery Ordinance and the ICAC. There were only isolated reports of corruption during the year.
The law provides for access to government information, and in practice such information was provided to both citizens and noncitizens, with exceptions that are narrowly defined and could be appealed.
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were generally cooperative and responsive to their views. Prominent human rights activists critical of the PRC also operated freely and maintained permanent resident status in Hong Kong, but overseas dissidents sometimes had difficulty gaining entry to the SAR.
The law provides that all residents are equal and the government enforced these rights in practice.
The government was sharply criticized during the year for failing to adequately address the growing problem of domestic violence. Local public health officials remained concerned about violence against women, particularly among new immigrants from the mainland. The Domestic Violence Ordinance allows victims to seek a three month injunction, extendable to six months, against an abuser. The ordinance does not criminalize domestic violence directly, although abusers may be liable for criminal charges under other ordinances, including the Crime Ordinance and the Offences Against the Person Ordinance. The government enforced the law and prosecuted violators, but sentences typically consisted only of injunctions or restraining orders. During the first half of the year, there were 1,620 cases of domestic violence reported to the social welfare department, which receives reports from the police, social workers, the health department, and volunteer organizations.
In October the executive director of Harmony House, an NGO that provides services to victims of domestic violence, said that between April and April 2004, 263 women were admitted to shelters to escape domestic violence--the highest figure in five years. In July a University of Hong Kong survey found that one in five families had experienced some form of domestic violence. Figures from the social welfare department, however, showed that only 622 child-abuse cases and 3,371 cases of spousal abuse were reported in 2004. The survey found that most victims endured years of abuse before seeking help. A study released by the Family Crisis Support Center in 2004 showed that many women were reluctant to report cases of domestic violence, with 1 in 6 victims waiting as long as 10 years before reporting an attack.
In 2004 a mother and her two daughters were killed in an act of domestic violence hours after unsuccessfully seeking help at a police station. The mother had previously sought help from government social workers. In September a coroner's inquest into that murder recommended sweeping changes to existing guidelines to combat domestic violence. The police department said it had already implemented some of the recommendations and would study the others. The social welfare department announced a "zero tolerance policy" toward domestic violence and said it was examining ways to strengthen the Domestic Violence Ordinance. NGOs said there was an urgent need to amend the law to make domestic violence a crime directly under the Domestic Violence Ordinance. The legislator representing the social welfare sector accused the government of doing too little to fight domestic violence.
In October the chief executive announced several new measures to assist domestic violence victims and to provide counseling to offenders. The government also funded programs such as family life education counseling, a hot line service, temporary housing, legal aid, and child protective services. It also sponsored public education and media programs through the women's commission to promote public awareness of domestic violence and encouraged women to seek early professional assistance.
There were 45 cases of rape reported to the police during the first half of the year. The 2002 Statute Law (Miscellaneous Provisions) Bill criminalizes marital rape. In 2003 the legislature passed an amendment to the Crimes Ordinance expressly clarifying that the term "unlawful sexual intercourse" could be applied both outside and inside the bounds of marriage. During the first half of the year, 559 indecent assault cases were reported to the police.
Prostitution is legal, but there are laws against activities such as causing or procuring another to be a prostitute, living on the prostitution of others, or keeping a vice establishment. Hong Kong is a transit and destination point for persons trafficked for the purposes of sexual exploitation (see section 5, Trafficking.).
The Sex Discrimination Ordinance prohibits sexual harassment of women seeking employment or already working in an organization. The EOC reported 37 sexual harassment complaints in the first half of the year. In 2004 the government extended the definition of sexual harassment in schools to cover conduct not specifically directed at a person, such as chanting obscene slogans or displaying posters with sexual content. The change closed a loophole that allowed behavior in schools that was banned in the workplace.
Women faced discrimination in employment, salary, welfare, inheritance, and promotion. A survey released in 2004 found that nearly 80 percent of women workers believed they were the victims of discrimination.
The percentage of women employed in professional fields, including sciences and engineering, law, teaching, accounting, social sciences, health, and medicine, declined slightly during the year. As of June, 33.5 percent of professionals employed in these fields were women, versus 35.1 percent in June 2004. Approximately 21 percent of judicial officers and judges were women. In the Legco, women held 11 of the 60 seats. According to a survey released in 2004, approximately three-quarters of private companies had women in senior management positions, and women occupied more than a quarter of senior management posts. Women were still disproportionately represented in the lower echelons of the work force.
The law treats men and women equally in terms of property rights in divorce settlements and in inheritance matters, although women still faced discrimination based on traditional practices, such as in the inheritance of homes in rural areas of the New Territories.
The government supported children's rights and welfare through well-funded systems of public education, medical care, and protective services. The Education Department provided schooling for children between 6 and 15 years of age and placement services for non-Chinese speaking children. Education is free and compulsory through grade nine. Nearly 100 percent of school-aged children attended school, and boys and girls attended in equal proportions. The government supported programs for custody, protection, day care, foster care, shelters, small group homes, and assistance to families.
The Domestic Violence Ordinance mandates substantial legal penalties for acts of child abuse such as battery, assault, neglect, abandonment, sexual exploitation, and child sex tourism, and the government enforced the law.
During the first half of the year, there were 586 child abuse cases reported to the police: 222 involved physical abuses (referring to victims less than 14 years of age) and 364 involved sexual abuses (referring to victims less than 17 years of age). Between April and April 2004, 263 women and 250 children were admitted to shelters to escape domestic violence. In July a University of Hong Kong survey found that almost one in three children had been abused.
The government provided parent education programs in all 50 of the department of health's maternal and child health centers, which included instruction on child abuse prevention. It also provided public education programs to raise awareness of child abuse, and to alert children about how to protect themselves. The social welfare department provided child psychologists for its clinical psychology units and social workers for its family and child protective services units. The department also commissioned research on domestic violence, including child abuse. The police maintained a child abuse investigation unit and a child witness support program. A child care center law helps prevent unsuitable persons from providing childcare services and facilitates the formation of mutual help childcare groups.
In 2003 the government enacted the Prevention of Child Pornography Ordinance, which criminalizes the making, production, distribution, publication, advertising, and possession of child pornography. It also prohibits the procurement of children for making pornography, extends the application of certain sexual offense provisions to acts committed against children outside of Hong Kong, and prohibits any arrangement or advertising relating to commission of those acts. The law carries a penalty of up to five years imprisonment and a fine of up to $128,500 (HK$1 million) for possession of child pornography. In 2004 police used the new law to conduct a sweep of child pornography Web sites, in co-operation with enforcement agencies in other countries. Police arrested 18 persons locally and closed down an overseas Web site. As of year-end, at least 12 of those arrested had been convicted.
In September at a hearing in Geneva the UN Committee on the Rights of the Child (UNCRC) criticized Hong Kong's implementation of the UN treaty on children's rights. Hong Kong is required to implement the treaty as a dependent territory of China. The committee outlined a number of problem areas, including the persistence of corporal punishment, a lack of measures to prevent sexual exploitation and trafficking, a lack of measures to combat child poverty, the low age of criminal responsibility, and discrimination against undocumented migrant children. The committee recommended that the government: create a single unified law or policy pertaining to children; establish a body representing children's views; ban corporal punishment; establish a poverty line; abolish life sentences for minors; and increase funding for child welfare programs. The government said it would consider the committee's recommendations, but rejected the call for a single comprehensive policy or law concerning children. The government continued to stress this was not necessary as there were no serious problems with the existing arrangements. However, the government was reviewing the Domestic Violence Ordinance to determine if there were provisions of the law pertaining to children that could be strengthened. During the UNCRC hearing, the government also pledged to prepare Hong Kong for application of the optional protocol on the sale of children, child prostitution, and child pornography.
The government provided subsidized, quality medical care for all children who were residents.
In 2003 legislation raised the age of criminal responsibility for children from 7 to 10 years. During the first half of the year, there were 70 youths under the age of 16 who were incarcerated: 17 in prison; 10 in training centers; 13 in detention centers; and 30 in rehabilitation centers.
There is no law prohibiting trafficking in persons. There are various laws and ordinances that allow law enforcement authorities to take action against traffickers. Despite robust efforts by the SAR government to stop such activities, Hong Kong was a point of transit and destination for a small number of persons trafficked for sexual exploitation from China and Southeast Asia. It was difficult for the government to identify trafficking victims from among the larger group of illegal immigrants.
Nearly all foreign prostitutes came to Hong Kong willingly to engage in prostitution. Most came from rural areas of the mainland, Thailand, or the Philippines on 14-day tourist visas, although a very small number entered using forged documents. The overwhelming majority were women, although an increasing number of young men were coming to Hong Kong to work as homosexual prostitutes. While many came on their own, some were lured to the SAR by criminal syndicates and promises of financial rewards. Prostitutes were typically required to repay the syndicates the cost of their airfare, lodging, and food. Some were forced to stay in Hong Kong longer than they anticipated, or work more than they expected, to repay their debts. Prostitutes were sometimes required to give their passports to the syndicates until the debt was paid. When their visas expired, many would travel to Macau or Shenzhen for a day, and then re-enter Hong Kong. Immigration officials were well aware of this practice and would deny re-entry if they suspected such abuse. Despite the involvement of syndicates in bringing prostitutes to Hong Kong, very few women were lured to the SAR with false promises of legitimate employment and then forced, or coerced, to work as prostitutes.
Traffickers have used forged or illegally obtained travel documents to attempt to smuggle persons through the Hong Kong airport. In 2004 the immigration department established the Anti-Illegal Migration Agency to target human smugglers and other travelers using fraudulent documents. The agency had 60 officers stationed at the Hong Kong International Airport. The number of fraudulent documents seized at the airport declined sharply during the first half of the year due to the presence of these officers. Authorities apprehended 834 persons with forged travel documents in the first half of the year, versus 1,288 during the same period in 2004.
During the year there were no known reports of persons being trafficked into the SAR to work as domestic workers.
Provisions in the Immigration Ordinance, the Crimes Ordinance, and other relevant laws enabled law enforcement authorities to take action against trafficking in persons. The courts can impose heavy fines and prison sentences up to 14 years for such activities as arranging passage of unauthorized entrants, assisting unauthorized entrants to remain, using or possessing a forged, false, or unlawfully obtained travel document, and aiding and abetting any person to use such a document. The security bureau is responsible for combating migrant trafficking and overseeing the police, customs, and immigration departments, which are responsible for enforcing antitrafficking laws. Law enforcement officials received special training on handling and protecting victims and vulnerable witnesses, including victims of trafficking.
The government provided legal aid to those taking legal action against an employer, and immunity from prosecution for those who assist in the investigation and prosecution of traffickers. The social welfare department and local NGOs also provided an array of social services to victims of trafficking. The government did not provide funding to foreign or domestic NGOs for services to victims. The government also tried to prevent trafficking by distributing pamphlets, in a wide range of languages, to workers about their rights.
Discrimination against persons with physical and mental disabilities persisted in employment, education, and the provision of some public services. The Disability Discrimination Ordinance calls for improved building access and sanctions against those who discriminate. Also, the Buildings Ordinance was amended in 2003 to update design requirements. However, despite inspections and the occasional closure of noncompliant businesses, access to public buildings (including public schools) and transportation remained a serious problem for persons with disabilities.
The government offered an integrated work program in sheltered workshops and provided vocational assessment and training. No comprehensive statistics were available on the number of persons with disabilities in the work force, but the last government survey conducted in 2000 estimated that there were approximately 269,500 persons with one or more disabilities, including 225,600 persons with physical disabilities and 52,700 with mental disabilities. According to the survey, of the 269,500 persons with disabilities, 52,500 were employed and 59,700 were considered "economically active," including small business owners and street vendors. However, a consortium of organizations representing persons with disabilities reported in 2002 that approximately 700 thousand residents were disabled, approximately half of whom were able to work. As of March there were 3,241 persons with disabilities employed as civil servants out of a total civil service work force of 158,737. During the first half of the year, the Labor Department's Selective Placement Division found jobs for 1,223 of 2,161 disabled job seekers. Out of 820 thousand students, approximately 10,400 were disabled (1.3 percent); approximately 38 percent of these students studied at mainstream schools.
The EOC sponsored a variety of activities to address discrimination against persons with disabilities, including youth education programs, distributing guidelines and resources for employers, carrying out media campaigns, and cosponsoring seminars and research.
The law provides for the right of association and the right of workers to establish and join organizations of their own choosing. Trade unions must register under the Trade Unions Ordinance. The basic precondition for registration is a minimum membership of seven persons. The Trade Unions Ordinance does not restrict union membership to a single trade, industry, or occupation and the government did not discourage or impede the formation of unions. Trade unions were independent of political parties and the government.
During the first half of the year, 9 new unions were registered, while 1 was deregistered; there were 712 registered trade unions. At the end of 2004, 21.04 percent of the 3,130,000 salaried employees and wage earners belonged to a labor organization.
The Employment Ordinance includes provisions that protect against antiunion discrimination. Violation is a criminal offense with a maximum fine of $12,800 (HK$100 thousand). Employees who allege such discrimination have the right to have their cases heard by the Labor Relations Tribunal. The tribunal may order reinstatement of the employee, subject to mutual consent of the employer and employee. The tribunal may award statutory entitlements (for instance, severance pay) and compensation. The maximum amount of compensation is $19,230 (HK$150 thousand). Some labor activists have complained that the labor tribunals tended to push conciliation rather than issue orders.
The 1997 Employment and Labor Relations (Miscellaneous Amendments) Ordinance removes the legal stipulation of trade unions' right to engage employers in collective bargaining. The ordinance bans the use of union funds for political purposes, requires the chief executive's approval before unions can contribute funds to any trade union outside of the SAR, and restricts the appointment of persons from outside the enterprise or sector to union executive committees. In a few trades such as tailoring and carpentry, wage rates were determined collectively in accordance with established trade practices and customs rather than a statutory mechanism, but collective bargaining was not practiced widely. Unions were not powerful enough to force management to engage in collective bargaining. The government did not engage in collective bargaining with civil servants' unions.
The workplace consultation promotion unit in the Labor Department facilitated communication, consultation, and voluntary negotiation between employers and employees. Tripartite committees for each of the nine sectors of the economy included representatives from trade unions, employers, and the Labor Department.
Work stoppages and strikes are legal. There are some restrictions on this right for civil servants. Although there is no legislative prohibition of strikes, in practice most workers had to sign employment contracts that typically stated that walking off the job is a breach of contract, which could lead to summary dismissal.
There were two labor stoppages by public employees during the year. Both were strikes by swimming pool lifeguards concerned about staff and pay cuts.
There are no export processing zones.
The law prohibits forced or compulsory labor. Although the law does not specifically prohibit forced or compulsory labor by children, there were no reports that such practices occurred.
The Employment of Children Regulations prohibits employment of children under the age of 15 in any industrial establishment. Children 13 and 14 years of age may work in certain nonindustrial establishments, subject to conditions aimed at ensuring a minimum 9 years of education and protection of their safety, health, and welfare. The Labor Department conducted regular workplace inspections to enforce compliance with the regulations. During the first half of the year, the Labor Department conducted 66,239 inspections and discovered 1 violation of the Employment of Children Regulations. The case involved an advertising company that failed to provide valid school attendance certificates for three child entertainers. The company received a written warning. The regulations limit work hours in the manufacturing sector for persons 15 to 17 years of age to 8 hours per day and 48 hours per week between 7 a.m. and 7 p.m. They also prohibit, for persons less than 18 years of age, overtime in industrial establishments with employment in dangerous trades.
There is no statutory minimum wage except for domestic workers of foreign origin. Aside from a small number of trades where a uniform wage structure exists, wage levels customarily are fixed by individual agreement between employer and employee and are determined by supply and demand. Some employers provided workers with various kinds of allowances, free medical treatment, and free subsidized transport. The average wage provided a decent standard of living for a worker and family. Two-income households were the norm. There are no regulations concerning working hours, paid weekly rest, rest breaks, or compulsory overtime. In October the chief executive for the first time acknowledged the need to study the issue of a minimum wage and limits on working hours.
The minimum wage for foreign domestic workers was approximately $426 per month (HK$3,320). The standard workweek was 48 hours, but many domestic workers worked much longer hours. The standard contract law requires employers to provide foreign domestic workers with housing, worker's compensation insurance, travel allowances, and food or a food allowance in addition to the minimum wage, which together provide a decent standard of living. Foreign domestic workers can be deported if dismissed. During the first half of the year, four employers were prosecuted and fined for labor law violations relating to the employment of foreign domestic workers. During the first half of the year 39 foreign domestic workers filed criminal suits against their employers for maltreatment.
The Occupational Safety and Health Branch of the Labor Department are responsible for safety and health promotion, enforcement of safety management legislation, as well as policy formulation and implementation.
The Factories and Industrial Undertakings Ordinance, the Occupational Safety and Health Ordinance, the Boilers and Pressure Vessels Ordinance, and their 35 sets of subsidiary regulations regulate safety and health conditions. During the first half of the year, the Labor Department conducted 61,985 inspections of workplaces and issued 731 summonses, resulting in a total of $771,874 (HK$6,020,617) in fines. Worker safety and health has improved over the years, but serious problems remained, particularly in the construction industry. During the first half of the year, there were 20,467 occupational injuries, of which 7,838 were classified as industrial accidents. There were nine fatal industrial accidents. Employers are required under the Employee's Compensation Ordinance to report any injuries sustained by their employees in work-related accidents. There is no specific legal provision allowing workers to remove themselves from dangerous work situations without jeopardy to continued employment.
In 2001 the SAR government was criticized by the UN Committee on Economic, Social, and Cultural Rights for failure to establish regulations on a statutory minimum wage, maximum working hours, paid weekly rest, rest breaks, compulsory overtime, and protection against unfair dismissal. In December 2004 the government referred the issue of a minimum wage and maximum working hours to the labor advisory board. As of year-end the board was still considering the issue. Moreover, there was no broad consensus in the community on these issues, which were debated by legislators, academics, and the public. Nevertheless, the Labor Department actively sought to improve working conditions by encouraging consultations, meetings, and seminars with industry-based committees comprising representatives of government, employers' associations, and trade unions. Such committees included the tripartite committee for the cargo transport industry and the committee for the property management industry.